son, in return for the acceptance of a plea of guilty to manslaughter and robbery in the first degrees plus a promise of a light sentence. The bargain also permitted defendant to plead to lesser charges in Suffolk County. Fuller was tried and convicted of murder in the second degree and is presently serving his sentence. When defendant provided the Q & A statement, his guilty plea was accepted but sentencing was postponed until after he had testified at the trials of Gary Thompson both in Nassau and Suffolk County. In that testimony, defendant clearly incriminated himself. After his conviction in Nassau County, defendant appealed to this court, contending that the statements the police had elicited from him after his arrest should have been suppressed. The conviction was reversed, the plea of guilty was vacated, the motion to suppress was granted, and the matter was remitted to the County Court, Nassau County
(People v Evans, 70 AD2d 886 ). The reversal was based on the theory that the police conduct which resulted in defendant’s confession deprived him of his right to counsel. Defendant’s appeal from the Suffolk County judgment of conviction also was reversed, the guilty plea there was vacated in the interest of justice, and the matter was remitted to the Supreme Court, Suffolk County on the basis of what had been done in the Nassau County matter (see
People v Evans, 72 AD2d 751 ). When prosecution of the Nassau County charges was resumed after the reversal, the District Attorney served notice upon the defendant of his intention to use the Q & A statement and his testimony at the Thompson trials. The defendant moved, in turn, to suppress these statements, but upon denial of his motion, he entered into a new plea bargain and again pleaded guilty. The current appeal is from the second judgment of conviction. The defendant contends that the statements he made in furtherance of and in accordance with his original plea bargain must be suppressed on three grounds: (1) that the statements in question are an integral part of the plea which was vacated by this court and the failure to suppress them would constitute a violation of his right against self incrimination and the rule of
People v Spitaleri (
9 NY2d 168 ); (2) that the statements were impelled by the erroneous refusal of the County Court to suppress defendant’s previous unlawfully obtained pre-arraignment confessions; and (3) that the statements were involuntarily made in that they resulted from promises of reduction of charges and sentence. Despite our revulsion at the heartless killing which underlies this case, it is apparent that constitutional considerations compel reversal, plea vacatur and suppression. Our conclusion does not derive from “fundamental fairness” criteria which preclude the use of a vacated or withdrawn plea of guilt against a defendant (see
Kercheval v United States, 274 US 220 ;
People v Spitaleri, supra). Rather, it is clear that the incriminatory statements defendant made pursuant to his plea bargain after denial of his' original suppression motion are •— to invoke a time-worn metaphor — the fruit of the poisonous tree (see
Harrison v United States, 392 US 219 ).
Harrison is enlightening because it involved a defendant who took the stand and testified in response to three illegally obtained confessions admitted against him. According to his trial testimony, Harrison was at the scene of the killing, shotgun in hand, but the gun went off accidently as he was attempting to pawn it. After the conviction was reversed because of the admission of the illegal confessions, a new trial took place. Over objection by defense counsel, the prosecutor read to the jury Harrison’s testimony at the first trial. In reversing the second conviction, the Supreme Court concluded that the same principle that prohibits the use of confessions illegally procured prohibits the use of any testimony impelled thereby. The “ ‘essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’
Silverthorne Lumber Co. v.
United States, 251 U. S. 385 , 392”
(Harrison v